Lax Kw’alaams asks court to strike Gitxaala’s claim for an injunction in Watson Island case

Filings related to the sale of Watson Island continue in court, as Lax Kw'alaams and Kitkatla dispute Aboriginal title to the land.

Filings related to the sale of Watson Island continue in court, as Lax Kw’alaams and Kitkatla continue to dispute Aboriginal title to the land.

In a November 4 filing, Lax Kw’alaams asked the court to strike the Gitxaala claim for an “injunction preventing the City of Prince Rupert from transferring, selling or otherwise disposing of or substantially redeveloping any portion” of the Watson Island site without “written acknowledgement from the Gitxaala Nation that the Gitxaala Nation has been consulted or sufficiently accommodated”. The filing asked they be “struck as an abuse of process of the court or unnecessary, scandalous, frivolous or vexatious”.

The filing lists a number of reasons for the request, the first being the impact the proceedings have on the sale of Watson Island to a joint venture that includes the Coast Tsimshian.

“The existence of the Civil Claim and the outstanding claim for an injunction is a substantial interference in the efforts of the City and the Lax Kw’alaams joint venture to complete financing and otherwise close the land transaction, and the existence of the civil claim and the outstanding claim for an injunction is causing prejudice to the defendants,” read the filing, which noted Lax Kw’alaams is paying $55,000 per month “in holding and maintenance costs while the transaction is pending.

However, in their response, the counsel for Chief Elmer Moody says the request for an injunction should not be impacting the sale of the land.

“There is currently no injunction order preventing the City of Prince Rupert from transferring or selling the land at issue. The Plaintiffs in their Notice of Civil Claim only seek remedies as against the City of Prince Rupert. There is no urgency to the Lax Kw’alaams application,” reads the response dated November 10.

Another concern of the Lax Kw’alaams is the length of time it is taking for the process to move forward, which they say the Plaintiff is responsible for.

“Gitxaala has not produced expeditiously either with the whole of the litigation and has taken no steps to proceed to trial. Aside from providing, after repeated demands, an initial list of documents on June 16, 2011, the Plaintiffs have provided no further materials related to this litigation generally or in particular with regard to the interlocutory injunction they seek,” reads the filing.

“It appears to be the intention of the Plaintiff to stall any action on the litigation for as long as possible, and thereby prevent sale of the lands, without bringing on any application for injunction…The Defendant Lax Kw’alaams allege that the Plaintiffs have filed the Notice of Civil Claim in bad faith, and without the intent of proceeding to trial, but instead for the improper purpose of bringing pressure upon the City of Prince Rupert to negotiate or abandon the sale.”

The Gitxaala, however, say the length of time in responding to requests is due to the nature of the claim.

“Because Gitxaala’s claim is founded in oral history, this has necessitated an extensive and time consuming process of gathering oral history evidence relating to Watson Island which is not yet complete,” read the response, which also says the affidavits provided by lax Kw’alaams total hundreds of pages and take time to address.

“The Plaintiffs are currently devoting their limited resources to providing responses to requests from examination to discovery, as well as engaging in critical consultations which also involve Lax Kw’alaams. Lax Kw’alaams sought an order requiring them to provide responses and the Plaintiffs consented to an order to do so by the end of November.”

Initially a hearing on the matter was scheduled for November 21 but given the amount of information, the fact Gitxaala would have to have a response to the court five days after the hundreds of pages of affidavits were received and that the counsel for Gitxaala is unavailable that day, Gitxaala has asked the court to delay the hearing until January 3, 2012.

“The Plaintiffs will be further be prejudiced if they are required to provide an application response and supporting affidavits….Five business days after being served with the Lax Kw’alaams application and extensive supporting material,” read the response.